The office of the Public Protector: Who is next?

It is timely for attorneys to reflect on the constructive role their profession played in the creation of the Office of the Public Protector, one of the Chapter Nine Institutions formed to support constitutional democracy in South Africa. The recent announcement that Professor Malegapuru Makgoba will soon serve as the first ‘Health Ombudsman’ in the country is a strong indication that government remains committed to the establishment of offices to deal with complaints from the public in an effective and efficient manner that is affordable to complainants. This is participative democracy in action at its best.

We have come a long way from the days of the Advocate General, a pale predecessor to our much more muscular Public Protector. The Constitutional Court has now affirmed, in its unanimous ‘Nkandla judgment’ (Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others 2016 (3) SA 580 (CC)), that the words in the Constitution that the Public Protector ‘has the power … to take appropriate remedial action’ mean that binding and enforceable rulings can be made in the reports on investigations by the staff of the Public Protector into maladministration in state affairs and the public administration. This welcome finding means that the popularity of the free services to the public available at any office of the Public Protector will surely grow.

It is a truism that the effectiveness of any institution, whether public or private, is only as good as the ethos of its leadership. The fidelity of the current Public Protector to her independent mandate and her willingness to ‘speak truth to power’ at great personal risk has illustrated this principle so vividly that Time magazine has accorded Thuli Madonsela recognition as one of the 100 most influential people in the world.

The question we should all be asking ourselves is who is the best candidate to step up on 15 October 2016? The answer to that question could play a vital role in the future trajectory of the rule of law and constitutionalism in the country. Openness, accountability and responsiveness are our constitutional watchwords. Who is best suited to take over as our fourth Public Protector and uphold these foundational values?

It behoves the organised profession, and indeed individual attorneys, to apply their minds and energy to lobbying for the appointment of a suitable successor to Ms Madonsela, whose seven-year non-renewable term expires on 14 October 2016. The ability to act without fear, favour or prejudice is the basic criterion and the proper understanding and application of constitutionalism, as adumbrated in the tenets and principles of the Constitution, a necessary prerequisite for the successor. Executive mindedness and limp-wristed spinelessness will not do. It is highly arguable that every Public Protector should be a trained and experienced lawyer, preferably a practitioner or a judge, whether retired or not. Politicians of whatever persuasion, whether amateur or professional, ought not to feature on any short-list of candidates due to the baggage they inevitably carry.

 Louis van Zyl, attorney, Cape Town

Divorce arbitration: Why not? The court remains upper guardian

The South African Law Reform Commission is currently calling for representations from interested parties regarding a proposal to repeal s 2 of the Arbitration Act 42 of 1965 and to permit the introduction of arbitration into family law, which the section prohibits.

There are compelling arguments in favour of such a course not least of which is the reluctance of most judges to be seized with defended divorce actions. In the event of family arbitration becoming a reality, one would argue in favor of it being confined to issues relating to divorce, ‘divorce arbitration’. It is suggested that to extend the proposal beyond divorce would be unworkable.

It is disappointing that a reference in the pilot project to court-annexed mediation is voluntary. Far preferable if it had been made mandatory. The proof of this is that court-annexed mediation thus far is less impressive than expected.

Divorce arbitration should be voluntary, since unlike mediation, it is adjudicative.

One of the major criticisms of arbitration, generally, is the lack of appeal other than where there exists agreement to the contrary. In arbitration, appeal lies to an arbitration tribunal but never to the court. In any event, modern jurisprudence suggests that the court’s function in arbitration should be confined to supervision (ie, review) and enforcement.

Arbitrators have ‘the right to be wrong’ either in law or on the facts. If this is the determining factor for disputants the court route beckons warts and all.

There are, however, other factors which may influence the decision in favor of a reference to divorce arbitration.

The litigants are free to agree on the identity of the arbitrator and the rules to be applied. An absolute no-no is the application of the rules of court, otherwise why bother? Other advantages include expedition, costs and finality.

Collating diaries will always be problematic. In the context of arbitration there is nevertheless greater scope to avoid inordinate delays. Arbitrators are involved from their appointment to driving the arbitration process and are, therefore, able to influence bringing a matter to trial without undue delay.

The saving of costs can be relative. Using the services of highly expensive lawyers is a matter of choice. Utilising rules aimed at expedition, choosing an arbitrator approved by the parties in and of themselves contain their own merits.

Lawyers experienced in family law and having undergone training specifically designed for arbitrators will likely ensure a high degree of competence. This in turn necessitates the creation of an overseeing authority, which the profession together with the Department of Justice, academics and other interested parties are surely capable of creating.

It is fundamental to the intended procedure that contracts giving rise to ‘divorce arbitration’ contain a simple provision such as: A and B agree to refer their disputes to arbitration by an arbitrator agreed between them – or failing such agreement – appointed by (XYZ Association) to be governed by the rules of the (XYZ Association).

The rules themselves should be designed for expedition and should not be burdened with a plethora of regulations. Solving issues not covered by the rules can be left to the discretion of the arbitrator.

It is argued that there are no issues involved in divorce that cannot be adjudicated on by a trained competent arbitrator. Insofar as children are concerned, they are protected by the court as upper guardian.

There appears no reason why a competent arbitrator thoroughly versed in family law should not be suited to adjudicate issues concerning children. It is assumed that this would preclude matters falling within the jurisdiction of the Children’s Court with the further assumption that arbitrators would be aware of this and act accordingly. Issues relating to children in the ordinary course require scrutiny by the Family Advocate and the enforcement of an arbitrator’s award requires the court’s sanction in terms of s 31 of the Act.  Thus in the final analysis the court would scrutinise provisions relating to children.

It is time to consign s 2 of the Arbitration Act to the ash heap of legal history.

Charles Cohen, attorney, Johannesburg

Carpe diem

As lawyers we have some exposure to Latin terminology, to differing extents, depending on how long one has been in the profession. One of the classical phrases that people are generally aware of is carpe diem.

This phrase means ‘seize the day’. It talks of having a presence of mind to recognise and take advantage of opportunities when they are presented.

Last week I relearnt a valuable lesson when I took two matters to trial. Both matters were beset with legal and factual difficulties, which militated against them succeeding. At times it happens that we take on matters without assessing them properly. Our judgment is susceptible to being clouded by a sense of justice, though most times justice and the law do not always dovetail. Sad, I know, but it is what it is.

As the trial dates neared I became despondent and began to develop a negative attitude towards the matters. I then recalled that during the previous week I had been reading about taking advantage of opportunities. I had learnt that if one looks hard enough one will – quite often – find that there is an opportunity, which if taken, can tilt the scales of justice to your and your client’s advantage.

There and then I decided to adopt a positive attitude and mindset. From that moment I began to see and connect dots that were previously ‘hidden’. Judgment was reserved in both matters, therefore, the outcome is yet to be determined. However, judging by both magistrates’ ‘off the record comments’, we are in with a fighting chance.

It is often said that ‘the opportunity of a lifetime must be seized within the lifetime of the opportunity’. Our inability to recognise and take advantage of opportunities, as trial lawyers, can disadvantage us and our clients. Perhaps it is time for institutions of higher learning to consider introducing this type of ‘soft skills’ training in their curricula.

Lwazi Dekeda, attorney, East London

These letters were first published in De Rebus in 2016 (July) DR 5.